Migratory Bird Treaty Act Bald & Golden Eagle Protection Act EO Bird Conservation on Private Lands

Laws that Protect Birds  Migratory Bird Treaty Act – strict liability statute that protects 1,007 species  Bald and Golden Eagle Protection Act – provides protection for Bald and Golden Eagles  Endangered Species Act – protects bird species listed under the act

Migratory Bird Treaty Act of 1918 …it is unlawful to pursue, hunt, take, capture or kill…any migratory bird, part, nest, egg… (16 U.S.C. §§ )

International Treaties Conventions developed to ensure the conservation of our shared birds

Extent of Protection  MBTA currently covers 1,007 species  50 CFR §  Does not include resident game birds or introduced species  Does include “resident” species  No provision for harm/harass (e.g., ESA)  No provision for bird habitat protection

The Basics No UNINTENTIONAL take allowed proof of “intent” not required  Courts have upheld that MBTA is a strict liability statute…proof of “intent” not required  Criminal cases are brought by the federal government against a private party (individual or an entity) for violating the MBTA. The result may be a misdemeanor or felony criminal charge.

MBTA and Federal Agencies Court rulings have varied on whether MBTA applies to Federal Agencies Humane Society V. Glickman ended the debate – Federal agencies may incur civil liability under the MBTA for ongoing or proposed actions that take birds unless that take is permitted by regulation or FWS permit. – The Administrative Procedure Act (APA) allows a private party to request that a court enjoin an agency action that does not comply with the MBTA (injunctions usually last until the action is brought into compliance or dropped).

MBTA Enforcement Service’s Office Law Enforcement has discretion to bring prosecution…but prefers use 3 “E’s”:  Education  Exchange of information  Enforcement

Permitted Take  Intentional Take allowed by permit only  Permits required to POSSESS any part, nest, or bird  12 types of Take Permit available  Common:  Depredation  Scientific Collecting  Banding  Others:  Falconry  Rehabilitation  Religious

10 The Essence of E.O “Responsibilities of Federal Agencies to Protect Migratory Birds” Directs executive departments and agencies to take certain actions to further implement the Migratory Bird Treaty Act Provides a framework for the Federal Government’s compliance with its treaty obligations Intended to enhance coordination and communication Provides opportunities for habitat protection, land management, and conservation planning

Memorandum of Understanding Per the Order… “each Federal agency taking actions that have, or are likely to have, a measurable negative effect on migratory bird populations is directed to develop and implement…a Memorandum of Understanding (MOU) with the Fish and Wildlife Service that shall promote the conservation of migratory bird populations.” Further states… “Notwithstanding the requirement to finalize an MOU…, each agency is encouraged to immediately begin implementing the conservation measures set forth…in subparagraphs (1) through (15) of this section….”

Subparagraphs (1) Integrate bird conservation into agency activities and by avoiding or minimizing adverse impacts on migratory bird resources (2) Restore and enhance the habitat of migratory birds (3) Prevent or abate the pollution or detrimental alteration of the Environment (4) Design migratory bird habitat and population conservation principles, measures, and practices, into agency plans and planning processes (5) Ensure that agency plans and actions promote programs and recommendations of comprehensive migratory bird planning efforts

Subparagraphs (6) Ensure that environmental review processes evaluate the effects of actions and agency plans on migratory birds, with emphasis on species of concern (7) Provide notice to the Service in advance of conducting an action that is intended to take migratory birds (8) Minimize the intentional take of species of concern (9) Identify where unintentional take is having, or is likely to have, a measurable negative effect on migratory bird populations, focusing first on species of concern, priority habitats, and key risk factors. Develop and use principles, standards, and practices that will lessen the amount of unintentional take, in cooperation with the Service.

Subparagraphs (10) Control the import, export, and establishment in the wild of live exotic animals and plants that may be harmful to migratory bird resources (11) Promote research and information exchange related to the conservation of migratory bird resources (12) Provide training and information to appropriate employees on methods and means of avoiding or minimizing the take of migratory birds and conserving and restoring migratory bird habitat (13) Promote migratory bird conservation in international activities (14) Recognize and promote economic and recreational values of birds (15) Develop partnerships with non-Federal entities to further bird conservation

15 E.O Species of Concern Refers to those Species: Listed in the periodic report Birds of Conservation Concern published by the FWS Division of Migratory Bird Management (2008) Priority migratory bird species documented in the comprehensive bird conservation plans (North American Waterbird Conservation Plan, United States Shorebird Conservation Plan, Partners in Flight Bird Conservation Plans)

Bird Conservation Plans Science-based Priorities and Objectives

Bald and Golden Eagle Protection Act “Eagle Act” “…prohibit anyone from “knowingly, or with wanton disregard” taking, possessing, selling, purchasing, or bartering, or offering to sell, purchase, or barter, transporting, exporting, or importing any bald or golden eagle, alive or dead, or any part, nest, or egg thereof.” 16 U.S.C. §§ 668 – 668d J. Nick Todd

Take Definition Unlike the MBTA, the Eagle Act specifically defines the term “take” to include “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb” 16 U.S.C. § 668c.

‘Disturb’ (72 FR 31132) Disturb means to agitate or bother a Bald or Golden Eagle to a degree that causes, or is likely to cause, based on the best scientific information available, 1) injury to an eagle, 2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or 3) nest abandonment, by substantially interfering with normal breeding, feeding or sheltering behavior.

The Details  Both Civil and Criminal Prosecutions can occur under the Eagle Act  Although little case law exists…the Eagle Act probably applies to Federal Agencies  Permits available for both Intentional and Incidental Take  Regulations for taking Eagles are at 50 CFR Part 22

How is This Applicable to NRCS? NRCS has a responsibility to comply with the MBTA, BGEPA, and EO NRCS must assess effects to migratory birds for all actions that NRCS conducts, oversees, and/or funds Impact analyses are incorporated into our Environmental Evaluation (CPA-52) and NEPA documents

NRCS CPA-52 MBTA Guide Sheet 1. Could the action(s) result in a take (intentionally or unintentionally) to any migratory bird, nest or egg? The term "take" means to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect (50 CFR Section 10.12). NOTE: The MBTA does not prohibit the destruction of a migratory bird nest alone (without birds or eggs) provided that no possession occurs during the destruction (USFWS, Migratory Bird Memorandum, MBPM-2, April, 2003).

NRCS CPA-52 MBTA Guide Sheet 2. Is it the purpose of the action(s) to intentionally "take" a migratory bird or any part, nest or egg (such as, but not limited to: controlling depredation by a migratory bird, or removal of occupied nests of nuisance migratory birds)? NOTE: Migratory game birds taken under state and Federal hunting regulations are exempt. If “Yes” - Inform the client that they must obtain a permit from USFWS and any required state permit before the action is implemented.

NRCS CPA-52 MBTA Guide Sheet 3. Have adverse effects on migratory birds been mitigated (avoided, reduced, or minimized) to the maximum practicable extent? Document mitigation measures on the NRCS- CPA-52, or notes section below, and in the plan.

NRCS CPA-52 MBTA Guide Sheet 4. Will unintentional take of migratory birds, either individually or cumulatively, result in a measurable negative effect on a migratory bird’s population? If "No," document and proceed with planning. If “Yes,” coordinate with USFWS to further lessen the amount of unintentional take (E.O (3)(e)(9)). Repeat Step 1 or indicate which of the following options is pursued by the client (pick one). Document.

NRCS CPA-52 MBTA Guide Sheet If “Yes,” coordinate with USFWS to further lessen the amount of unintentional take (E.O (3)(e)(9)). Repeat Step 1 or indicate which of the following options is pursued by the client (pick one). Document. – The client will obtain a permit from USFWS before the action is implemented; OR – NRCS may need to terminate assistance. Contact the NRCS State Environmental Specialist or Wildlife Biologist.

Planning for Migratory Bird Conservation

Proactive Conservation Non-regulatory Non-advocacy Voluntary Looking for shared interests among all partners Combine priorities & objectives with opportunities

All Plans Have Adaptive management framework Pre-construction assessments – Step 1 – Identify Problems and Opportunities – Step 3 – Inventory Resources Assess effects – Step 6 – Evaluate Alternatives Conservation measures – Step 5 Formulate Alternatives Post-construction monitoring – Step 9 – Evaluate the plan Impact validation – Step 9 – Evaluate the plan

Assessing Project Effects  Identify migratory birds or habitats that may be affected  Determine if MBTA, BGEPA, ESA applies  determine the appropriate consultation to undertake  Evaluate short-term, long-term, and cumulative effects  Identify conservation measures Develop Proactive Conservation Plan if appropriate

Direct Effects  Take of adults and/or nests during construction/habitat removal actions  Collisions with power lines, guy wires, wind turbines, fences

Indirect Effects Fragmentation Disturbance Site Avoidance Barriers

Cumulative Effects  Renewable Energy Development  Communication Towers  Buildings/Structures  Cats  Other industries  Other land uses

Conservation Planning Steps 5 & 6 - Formulate and Evaluate Alternatives AVOID, MINIMIZE, and COMPENSATE adverse effects of practices

Conservation Measures Also called BMPs and Mitigation Measures (includes avoidance, minimize, and compensation) Can be general or species/activity specific Implemented during pre-construction, construction, and operation phases

Conservation Measures Project Siting  Use already disturbed lands to maximum extent practicable  Minimize area of disturbance  Minimize fragmentation of intact blocks of habitat  Avoid important migratory corridors or important wintering areas  Avoid features that attract birds (e.g., riparian areas, wetlands)

Conservation Measures Project Design  Minimize lighting – motion sensors  Minimize noise effects  Minimize available perches and nesting structures that might attract birds  Minimize collision hazards  Mark fences

Avoiding the Nesting Season Avoid disturbing activities during the nesting season – Nesting season varies by species and area – Contact NRCS, IDFG, or FWS biologist – Clear vegetation the year prior to construction If activities cannot avoid nesting season: – Provide explanation and justification – Survey project area prior to construction – Establish work avoidance buffers

Work Buffers  Distances will vary  Species tolerance  Habitat type  Work type (e.g., prolonged loud noise, short duration)  Work with Biologist on appropriate distances  Work avoidance buffer should be based on level of disturbance to a nesting bird  What distance does bird get flushed and remain off nest?  Biologist present during activities to ensure nest protection

Habitat Restoration  Minimize effects to bird habitat thru post- construction restoration actions  On-site restoration for temporary disturbances  Off-site restoration for permanent disturbances  Tools such as Biology Tech Notes 19 and 32 can help evaluate compensation for the loss of bird habitat

Additional Conservation Measures Prevent release of non-native plants Control and prevent spread of invasive plants Minimize wildfire potential Control erosion Minimize operational road traffic Reduce speed limits

Acknowledgements U.S. Fish and Wildlife Service Division of Migratory Bird Management Eric L. Kershner, Ph.D. Diana Whittington Terry Rich

Questions??